I returned home from vacation with a cold to find that the D.C. District Court had issued an opinion in the Washington Alliance of Technology Workers [WashTech] v. U.S. Department of Homeland Security case. The court had vacated (i.e., invalidated) the 2008 regulations that created expansions for the Optional Practical Training Program (OPT) effective February 12, 2016. While the news has been completely ignored by the mainstream media, it has created a firestorm in the legal and trade press.
As it existed in 2007, OPT was a work program created through regulation that authorized aliens on student visas to work in the United States for up to a year after graduation (i.e., when they were no longer students). While the OPT program clearly violated the plain language of the statute authorizing student visas, it had remained under the radar — that is until DHS decided to transform OPT into a full-fledged guestworker program.
In 2007, Microsoft approached former DHS secretary Chertoff with a proposal to circumvent the limits on H-1B visas. Microsoft's scam was to use student visas. If an alien could not get an H-1B visa due to the quotas, let him work on a student visa instead under the OPT program that would be extended from one year to 29 months. Microsoft made that pitch to DHS at a dinner party hosted by the billionaire owner of the Washington Nationals.
The Bush administration worked on those regulations in absolute secrecy, only consulting business and academic groups who would support them.
The only notice the public received that such regulations were being considered with when DHS put them in place, fait accompli, without notice and comment in April 2008.
The rule-making process is supposed to be public. Agencies are generally required to provide notice and comment on regulations except in very limited circumstances. Those exceptions are:
- The rule is interpretive (clearly not the case here); or
- Public notice of the rule would defeat the purpose of the rule (again, not applicable here); or
- Giving notice and comment was impracticable.
DHS did not even identify which of the exceptions it was claiming in order to waive notice and comment. The court's opinion points out that it assumes DHS was claiming impracticability because none of the other exceptions was remotely applicable. But DHS gave no reason why holding notice and comment was impracticable. The administrative record spans over a year so there clearly was no time barrier.
That is corrupt government and created a case that is as close as you get to a slam-dunk in law.
The failure to give notice and comment when it is required is a major defect that normally requires the rule to be vacated.
Why the surprise?
There appears to be great shock in some quarters over the outcome of this case. I cannot understand why. The case has progressed openly. I testified about the case before the Senate Judiciary Committee.
I have written about it. We put out press releases. ComputerWorld had followed the case.
Law 360 included it as one of the immigration cases to watch for this year.
I answered questions from reporters about the case precisely because it was important, and the public had a right to know what was going on. Unlike DHS when it made the rule, we did everything possible to let the public know what was going on with the case as it progressed.
In regard to the merits of the case, objective observers knew that DHS screwed up the 2008 OPT rule worse than Seattle screwed up the last drive in the Super Bowl. I have spoken with a number of people who worked at DHS at the time who have told me DHS knew the 2008 OPT rule would never survive a court challenge unless they could get some political judge who would blindly dismiss the case on standing.
Maybe some people are shocked because they relied on the blog fog for news on the case and their source of information was legal pontificators who know little about what they are writing. Yes, I saw those posts throughout the case as people sent me links. I found it scary that people trust their immigration needs to such "lawyers".
Hopefully your lawyer explained to you the "competitive standing doctrine" and the exceptions to the requirement to provide notice and comment during this case. On the other hand, if your lawyer was telling you, "That lawsuit is frivolous," "They could be sanctioned," "These folks will never have standing," or "The 2008 OPT Rule has no chance of being vacated," you need a new lawyer.
What happens next?
Some folks pontificating in the blog fog have interpreted the judge's delay as being designed to create an opportunity for DHS to correct procedural errors and move on (or even expand OPT further).
I offer a different interpretation: The court said, "You folks at DHS screwed up big time, but I will give you six months to clean up the mess you made."
Remember that the judge could just as well have ended the 2008 OPT rule immediately.
DHS has two main options at this point. The simplest is for it to abandon STEM OPT extensions altogether. It could then use the six-month vacatur delay to prepare those on extensions for their status to end. They could put together a package for those on OPT extensions informing them that their status ends on February 12 and describing some of their immigration options. DHS could come up with a plan for refunding the $380 fees it unlawfully collected from the foreign guest workers for their OPT extensions.
The other alternative is to double down on STEM OPT extensions. While the blog fog assumes this is the option DHS will take, it creates a conundrum for DHS. Normally getting a new rule out in six months would not be a problem. However DHS's past bad behavior makes a new rule problematic. For the second time around, DHS must make a "compelling" showing that it kept an open mind during the notice and comment process. How does DHS ram a regulation through the door as fast as possible while at the same time make a compelling showing that it kept an open mind on whether the rule was necessary at all? How would DHS extend to labor groups opposed to an expansion the same direct access that it already provided industry groups in support — and do so within six months?
Some in the blog fog have suggested the quickest thing for DHS to do would be to simply run the 2008 OPT rule through notice and comment. That is not an option for DHS. Notice and comment is the only one addressed in the opinion, but there are so many defects in that rule that doing so would produce a new rule that would be immediately struck down.
It is for these reasons that I do not believe that DHS will put in place a new OPT rule by the February 12, 2016, deadline.
I can also think of a few other maneuvers DHS could try, but they have both upsides and potentially catastrophic downsides.
Another ill-defined variable at this point for making predictions is that WashTech has already appealed to review the district court's holding that DHS has the authority to make the OPT extension. Given the rigor with which the district court approached its opinion, there is a surprising, major error in its reasoning on this issue. In fact, it is a rather obvious and several other lawyers have contacted me over the past few days to point this same error out ("Are you going to appeal this?"). The pontificators making predictions in the blog fog should have already spotted it as well if they have any legal competence.
That does not necessary mean the conclusion will be overturned on appeal. The D.C. Circuit might come up with a different line of reasoning to justify OPT extensions. In any event, there is a significant possibility that the circuit could hold on appeal that DHS does not have the authority to expand OPT at all.
Another factor being ignored in analysis is that DHS already has a large plate of rules in the queue that are reported to be coming out in the next few weeks. DHS's administrative resources are likely to be tied up on other projects.
Finally, the blog fog has also ignored political reality. Over the past year we saw foreign workers replace Americans at Southern California Edison and Disney. Did the Obama administration go into overdrive and use the ambiguities in the immigration statutes to rush new rules in place to keep Americans from losing their jobs in this way? (Answer: No.) If the Obama administration now responds with frantic action to keep foreign workers from losing their jobs, it would clearly demonstrate that the administration has a highly warped sense of priorities in immigration policy.
The number of variables prevents me from making predictions on the ultimate outcome. In any event, as of now, OPT extensions end on February 12, 2016. I would plan accordingly.